in Petit-Guavis in Hispaniola the rest of that Island being possest by the Spaniards The French have also a Settlement in Guiana in the Terra-Firma and several Forts upon the Coast of Caribana and above twelve or thirteen American Islands The Dutch have also the City of Coro in the North of Terra-Firma and Suranam and certain Forts upon the Coast of Guiana and Curasao and several American Islands The Portuguese have the Coast of Brasil divided into many Captainships The Interest of Spain was ever opposit to all these Settlements in America and wherever they were strong enough they attempted to expel the Planters without regard to Peace or War whereof the Scots did formerly feel the Effects in their Plantation at Carolina holden of the Crown of England from whence they were expelled These things were done by way of Fact but it is the first time that ever Spain did openly pretend a Right beyond actual Possession which was never sustained by any European Prince And it is desired and expected that there may be a further Condescendance of the Right and Title of Spain to exclude other Planters by the Consent of the Natives where Spain hath no actual Possession or Exercise of any Jurisdiction It is further alledged for Spain That all the Business in America was settled by the Pacification 1670 betwixt the Kings of Brittain and Spain which did confirm all the Plantations possess'd by English Colonies and left the Remainder of America to Spain and whatever happened before that General Treaty could be no Rule thereafter because there was almost perpetual War with Spain in America which were never settled or composed till the Treaty 1670 which did presuppose and establish the Right of Spain to all that was not possessed by the King of Brittain's Subjects As to the Instance of Sharp it is not denyed that he was acquitted and amongst others did propone that Defence That he Acted by Commission from an Indian Prince but that Defence was look'd upon as a Jest and it was not for that Reason that he was acquitted It is Answered There was indeed a Treaty in the Year 1670 concerning America in particular whereby it was provided That the King of Brittain should have hold and enjoy for ever with full Right of Sovereignty Dominion and Property all those Lands Regions Islands Colonies and Places whatsoever situated in the West-Indies or any part of America which the said King and his Subjects did then hold and possess From which Article the Spaniards would infer that all the rest of America was lost by the King of Brittain as a Right and Dominion of Spain because that Spain ratifies the Possession obtained by the King of Brittain and there is not a mutual Ratification of the Possession of the King of Spain This Article can bear no such Inference for 1. The King of Brittain and his Subjects did not then nor do they now in the least question the Possessions of the King of Spain and his Subjects but the King of Spain did very much question the Right of the King of Brittain to several of his American Plantations not only upon the general Ground of an Universal Title to all the West-Indies which no European Prince will bear but likewise upon particular Claims that the English had beat out the Spaniards and enjoyed what had been once possess'd by them in several places And the former Treaties with Spain especialy that in the Year 1667 were only general establishing a perpetual Peace betwixt the Dominions and Teritories of Brittain and these of Spain But the Question remaining anent the Right and Dominion of these American Settlements to which the King of Spain did lay still a Claim The Treaty 1670 did renounce his Claim to the Colonies in the English Possession but did determine nothing as to those parts of America which were never Possess'd by the Spaniard or Brittish and if it had been intended that the Right of Spain to all America that was not possess'd by some other European Prince should be asserted and declared the same would not have been left to such remote conjectures but would have been specially express'd 2. The whole Tenor of that Treaty does sufficiently clear that no such thing was intended as to presuppose much less to assert the Right of Spain beyond actual possession For by the Second Article of the Treaty it is provided That there be an Universal Peace in America as in other parts of the World between the Kings of Great Brittain and Spain and between the Kingdoms States Plantations Colonies Forts Cities Islands and Dominions belonging to either of them and between the People and Inhabitants under their respective Obedience This Article in the Treaty relating to America only doth clearly demonstrate that both Kings were set upon an equal foot and did Treat for themselves and the People and Inhabitants under their respective Obedience and no further so that all matters were left untouched that did concern parts not Inhabited or possess'd by Natives who were never under obedience to either Prince nor would the Treaty have been for Plantations Colonies Forts c. equally and mutually if either King had pretended an universal Title or Right beyond Possession 3. The Eight Article doth yet further clear that the King of Spain had no Universal Claim but according to his Possession which Article provides that the Subjects Inhabitants and Mariners of the Dominions of each Confederate shall forbear to Sail to or Trade in the Ports and Havens which are fortified with Castles Magazines or Ware-Houses and in all other Places whatsoever possess'd by the other Party in the West Indies To wit the Subjects of Brittain shall not Sail into and Trade in the Havens and Places which the Catholick King holds in the Indies nor in like manner shall the Subjects of the King of Spain Sail into c. This Clause is plainly restrictive upon the King of Spain That the Subjects of the King of Brittain shall not Trade into these places of the Indies which belong to Spain for thereby it presupposes that Spain has no Universal Title and it s left free to the King of Brittains Subjects to Sail into and Trade in all Ports and Havens which have no Fortifications Castles Magazines or Ware-Houses Possess'd by the King of Spain and consequently it was lawful to have Sailed to and Traded with the Darien Indians where the King of Spain had no Fortifications Castles Magazines or Ware-Houses nor can clear any manner of Possession and if they might Trade with the Indians it must be acknowledg'd they might Settle among them It 's also provided by the Tenth Article that in case the Ships of either Party be forced by stress of Weather or otherwise into the Rivers Creeks Bays or Ports belonging to the other in America they shall be treated there with all Humanity and Kindness Which Article states both Kings again upon an equal foot and mentions the Right of both as restrictive to
SCOTLAND'S RIGHT to CALEDONIA Formerly called DARIEN And the Legality of its Settlement asserted in Three several Memorials presented to His Majesty in May 1699. BY The Lord President of the Session and Lord Advocate on behalf of the Company of Scotland Trading to Africa and the Indies Quod enim est nullius per occupationem acquiritur ejus Dominium Puffend de Jur. Nat. Gent. Printed in the Year 1700. The Three following Memorials were presented to His Majesty in May 1699. by the Lord President of the Session and Lord Advocat on behalf of the Company of Scotland Trading to Africa and the Indies asserting the Legality of their Settlement in Darien 1st MEMORIAL THe Establishment of the Company of Scotland Trading to Africa and the Indies was first prepared by an Act of Parliament 1693. Inviting and Encouraging Persons in General to enter into Societies and Companies for carrying on a Trade to whatsoever Kingdoms Countrie or parts of the World not being in War with His Majesty and thereafter perfected by the Act of Parliament 1695 and a Charter thereon under the Great Seal whereby the said Company was fully Settled with all the Powers Priviledges and Immunities in use to be granted in such cases and particularly with Power to plant Colonies and build Cities Towns and Forts in Asia Africa or America upon Places not Inhabited or upon any other Place by Consent of the Natives and Inhabitants thereof and not possess'd by any European Prince or State The Settling of this Company was so acceptable to the whole Kingdom abounding always with Men and of late Years very desirous to enlarge Trade and Commerce That the Company 's Books being once opened Subscriptions for a vast Sum were compleated long before the Day prefix'd by the Act of Parliament and there were few Persons or Families of any Account within the Kingdom who were not therein particularly concerned But tho' the Subscriptions were soon compleated and the Advances made as readily as propos'd yet the Directors and Managers did proceed with great Deliberation not being more Cautious to Conceal the Place where they were design'd for than Careful to make such a Choice as might be exactly in the Terms of their Act and Patent To wit Either not Inhabited or freely Consented to by the Natives and not possess'd by any European Prince or State and so lyable to no Exception In pursuance of these Resolutions The Company prepared Men and Provisions and set out their Ships and in the Month of November 1698 arrived on the Noth-side of the Isthmus of Darien in America they pitched upon a Place never before possess'd by the Spaniards and after formal and distinct Treaties obtained the Consent and Good-will of all the Neighbouring Natives and People The Spaniards and French raise a Clamour against the Settlement as an Invasion of the Spanish Possessions and Dominions in as much as the Place where the Company hath fixed lyes as it were in the Middle and Bosom of the Spanish Countries having Carthagenae on the East and Porto-Bello on the West and Panama on the South which is also alledged to be contrary to the Treaties betwixt the King of Great Brittain and the King of Spain whereby all these Countrie 's are yeilded and conformed to the Spaniards If these parts of America had been wholly Void and Uninhabited when the Spaniards made their first Discoveries and Plantations there the Question had certainly proceeded upon the head of Occupation the only Ground acknowledg'd by all Lawyers to determine the Property of all Waste and Uninhabited Countries where a formal Division hath not Interveened as Grotius in particular in his Second Book de jure Belli doth abundantly clear and then the Spaniards must have further Subsumed That as they found these Countries Waste so they were the Occupiers and Possessors thereof and in Special that they were the first Occupiers and Possessors of the Isthmus of Darien and the Place where the Company hath Settled it being most certain that Occupation gives no Right save in so far as the Real and Actual Possession extends But seing on the other hand it is Nottour and by all Acknowledg'd That the Spaniards did not find these Parts Waste and Uninhabited this Argument must necessarly fall and all that the Spaniards can now Plead is either present Possession which the Company 's Patent owns to be a sufficient Right to any European Prince or State or the above-mention'd Treaties as exclusive of the King of Great Brittain's Subjects For clearing then the Claim and Point of Possession The Company denies that ever the Spaniard had any Possession of the Place where they have Planted and it s obviously Incumbent to the Spaniard if they alledge Possession to prove and instruct their Alledgance for the Company 's Argument being Negative viz. That the Spaniards did never Possess the Country where the Company hath Settled it Undeniably proves it self as all Lawiers affirm unless the contrary to wit The Spaniards Possession be evidently made out and proved which is impossible Nor do the Spaniards pretend to prove the same But their Alledgance is That in these large Countries of America it were plainly Capricious to require the Actual Possession of every particular Place But since they have the Uncontraverted Right and Possession of Carthagena Porto-Bello and Panama which are the Extremities that in a manner environ the Isthmus of Darien their Possession of these Places must infer a Possession of the Interjacent Country in which the Company hath Settled and consequently that the Company hath Encroached upon and Invaded their Right And further it s said That the Spaniards have actually possess'd Gold and Silver Mines in Darien much nearer to the Company 's Settlement than Carthgena or these other Places and have constantly been in use to Seize and make Prize of all Ships coming upon the Coast betwixt Porto-Bello and Carthagena as Invaders of their Possessions tho' these Ships did really pertain to Friends and Allies To all which It is answered 1mo That the above-mentioned Places belonging to the Spaniard are very far distant from the Settlement of the Company Carthagena above Fifty and Porto-bello and Panama above Thirty Leagues which Distances are more then sufficient to render Countries distinct both as to Right and Possession 2do It 's certain that Carthagena Porto-bello or Panama cannot be understood to have unlimited Territories if then their Territories be limited it belongs to the makers of the Objection to show that the Limits of these places do reach to and comprehend the Place possess'd by the Company which neither the Spaniards nor any for them will ever be able to prove by the Law of Nations or any known Rule or Custom in such Cases It hath already been Notic'd That tho' these Countries had been wholly Void when the Spaniards begun to Plant there they could only by their Possession have appropriat as far as they did possess and that what was not possess'd would have
and so undersell any other Nation during that Immunity It s Answered That the Company in England have almost the same Priviledge since if they please to Export after their Return from the Plantations they are allowed to do it freely with a full Draw-back excepting only 3 or 4 per Cent. 3tio It is with Submission Represented That in all Appearance if the Company of Scotland had not seized the foresaid Post in Darien the French had certainly taken it And now that it is discovered to be so advantageous for Trade it is not to be doubted but that the French who shew such Earnestness to have the Scots excluded will certainly if any such thing should happen possess themselves of it not only to the Hurt of the English Plantations but to the far greater Prejudice if not the Ruin of the Spaniards Interest in the Indies And therefore All things truly and justly considered it is hoped that not only the English will become more and more favourable to so good a Design but that even the Spanish will the more easily acquiesce to Reason and Justice that they see a more Powerful Competitor ready to catch hold of an Advantage that cannot be so safe for them in the Hands of any other Nation as in the Possession of the foresaid Company 3d. MEMORIAL By the same THe Company of Scotland Trading to Africa and the Indies being endued with very ample Priviledges hath settled a Colony at Darien a Countrey very fit and proper for that purpose not only for the Richness of the Soil and Mines but likeways by its Situation for Trade The Spaniards have the most considerable Interest and Plantations in America and are not willing that any other Nation or People should have share of the Advantages and Benefits they draw from thence which is not Singular in the present Case because they have ever withstood all Planters either upon the Continent or American Islands by Acts of Violence and Hostility as if every Settlement in America were an Encroachment upon the Right of Spain There is lately a Memorial offered in behalf of the King of Spain to one of the Secretaries of State of the Kingdom of England to the Effect following My Lord Ambassador of Spain finding himself oblig'd by express Order to represent to His Majesty of Brittain what follows Prays Mr. Vernon to represent to his said Majesty That the King his Master being informed from several parts and last of all by the Governour of Havana of the Insult and Attempt of some Scots Ships equipt with Men and Ammunition necessary who endeavours to post themselves in the Soverign Dominions of His Majesty in America and particularly in the Province of Darien His Majesty received this Information with Dissatisfaction as a Mark of little Amity and a Rupture of the Alliance which is betwixt the two Crowns which His Majesty hath always observed very Religiously and from which so much Advantage and Profit hath resulted both to His Majesty and his Subjects after which good Correspondence His Majesty did not exspect such sudden Attempts Insults from His Majestys Subjects and that in time of Peace without any Pretext or Cause in the most inward part of his Dominions All that the King desires That this be presented to His Majesty of Brittain and that His Majesty is very sensible of such Hostilities and Unjust Procedures against which His Majesty will take such Measures as are convenient London May 3d. 1699. THe Charge is great and if it can be made appear that the King of Spain is Invaded as is pretended it is but Reason there should be just Reparation It must be acknowledged That it is a fair way of dealing that the Spanish Rights and Pretensions are thus asserted by Memorial and an Opportunity afforded and that the whole World may be satisfied that His Sacred Majesty the King of Great Brittain hath granted no Patent to His Subjects in Scotland disagreeable to Treaties with Spain and that the Scots Company have not exceeded the Limits of their Patent to the prejudice of Spain There may be many Reasons offered to satisfy Spain and all other Nations of Europe except the French that if the Scots had not settled in that Isthmus or if they were now to remove from it the same would be possess'd by another People more dangerous to the Interest of Spain and in due time it may be made appear that the Scots Settlement is for the Honour of the King the Interest of England but the present design is only to satisfie the World that the Patent granted by His Majesty was agreeable to the Treaty with Spain and that the Scots Company have not exceeded the Terms of their Patent and that they have Right to what they possess in the Isthmus of Darien according to the Law of Nations and that most part of the Nations in Europe have settled Plantations in the American Islands or Continent upon no other Foundation than the Scots It is the Interest and Policy of all Governments to improve the Natural Product of a Countrey and to encourage Forreign Trade The Experience of all Nations makes appear That nothing contributes so effectually to these ends as Forreign Plantations Scotland is amongst the last of the Nations of Europe in settling Forreign Plantations tho' there be few that can propose more Advantage that way because the Nation affords many Subjects of Manufacture and abounds in Men which is the greatest Riches as well as the Strength of a Nation Yet for want of Forreign Plantations many have been useless and burdensome to their Native Countrey and have been constrained to serve Abroad in Forreign Wars or into Plantations of other Countreys And it is to be observed that wherever they have planted they have encreased and multiplied as particularly in Ireland but no part of the Benefit does accrue to their Native Countrey The Nation has very long desired Forreign Settlements of their own and did make some Attempts that way which proved ineffectual for want of due Encouragement but His Sacred Majesty as Father of his Countrey regarding the Welfare of it did endue the same with suteable Encouragements by the 32d Act Par. 1693. and by the 8th Act Par. 1695. Yet both these Laws were granted with a due regard to all former Planters And did only allow them to plant Colonies build Cities Towns and Forts in Asia Africa and America upon Places not inhabited or in or upon any other Place by Consent of the Natives or Inhabitants thereof and not possessed by any European Sovereign Potentate Prince or State By these Acts of Parliament and Patent conform His Majesty did sufficiently provide that the Possession of no European Prince should be invaded or molested And if Spain be injured the Company must acknowledge that the Injury flows from them by exceeding the Limits of their Patent It remains to be cleared in behalf of the Company that they have strictly observed the Rules prescrib'd by the
said Acts and Patent The King of Spain's Title to America by the Pope's Bull is rejected by the common Consent of all the Princes and States in Europe who could not have settled there without Injury to Spain if the Pope's Bull had been a sufficient Title and neither Spain or Portugal hath relyed upon that Title the one having planted in the East-Indies and the other in the West without regard to it And this Title is sufficiently discussed by Grotius in his Mare Liberum Cap. 3. and will never be insisted on any where and least of all in Brittain America being inhabited by Natives before Spain or any European People settled there it is most certain that the Right and Property did originally belong to these Natives because the Earth was created for and freely given by the Creator to the Children of Men and the most Ancient and Uncontraverted Right of Property of the Earth is by Occupation and Possession which is an outward Act of the Body quasi positio pedis and not an inward Act of the Mind which cannot be known to others beside many Mens wills might concur in wishing and liking the same thing but their Bodies cannot concur in possessing it and an outward Act of Possession warns others to abstain The Property that originally belonged to the Natives could only be transferred from them to Spain by Conquest or Consent and Spain can pretend neither of these Titles to the Isthmus where the Scots have settled It is alledg'd for Spain That they do possess the Isthmus of Darien in as far as they are undoubted Masters of the Bay of Panama and the whole Coast of the Isthmus upon the South Sea They have likewise Carthagena and Portobella on the North Sea and they are Masters of the whole Countrey betwixt Carthagena and Portobello and so must be reckoned Possessors of all because Possession doth not require the particular Occupation of every part of a Countrey but Occupation of one part is a sufficient Act to demonstrate the Will and Intention to possess the whole Pertinents And the Spaniards having possess'd these two Extremes the middle Space belongs to them especially seing they have also settled in other Places betwixt these two as their Conveniency did require tho' they did afterwards quite these Possessions as particularly they once possessed Nombre de Diot and did also plant within the River Datien and tho' they did quite these Possessions they did not relinquish or repudiate their Right but being better informed they choosed more convenient Seats but still reckoned themselves Proprietors of the whole Isthmus and divided the same in several Jurisdictions And the Natives upon that Isthmus were a mean inconsiderable People not to be regarded who could not be thought to retain any Right or Property in Opposition to the Power of Spain They further add That Spain hath been considered as undoubted Proprietors of the Bay of Mexico and of that Isthmus by other Nations in Christendom and most particularly by the English as is well known and will clearly appear in two remarkable Instances Several English Merchants having advanc'd their Stock for settling a Plantation at Port-Royal in the Bottom of the Bay of Campechay for cutting of Logwood they desired the Countenance and Protection of the Government for carrying on this profitable Trade The Case was considered by the Council of England and it was not found just to allow the Protection of the Government but were only left in a Permissive State to manage their Trade upon their Peril The Second Case which comes closer to the present Question was a Proposal by certain English Undertakers to settle in Darien as the Scots have done which being brought to the Council of Trade of England and by them laid before the Lords Justices in His Majesties Absence and transmitted to the King himself Upon a full Consideration of the Case that Project was thought to be an Encroachment upon Spain and let fall The King himself and Council of England being satisfied of the Right of Spain in these particular Cases of English Undertakers the same judgment ought to follow in relation to the Scoâ—â— Company To all that is alledged it 's shortly and clearly Answered That Spain hath neither Right by Treaties nor Possession to the Countrey now possess'd by the Scots And 1st Tho' it be acknowledg'd that the Spaniards have more Strength and larger Possessions on the South than upon the North Sea yet no Possession there can be extended to the North-side of the Isthmus being possess'd by a People Independent who never received the Spaniards or became subject to them The Spaniards indeed have made great Settlements upon the South Sea and in so far as they have possess'd have restricted the Natives to narrower Bounds but the Indians still continuing to possess what remains Possession on the Coast or the Mouths of Rivers on the South Sea can never be extended to the North Coast And the Spaniard can condescend upon no Ground in Law or Reason for such an Extension hor can they make appear that what the Scots possess is Part and Pertiennt of their Plantation especially considering that the Isthmus of Darien is naturally divided by a Ridge of high Hills running from East to West Neither doth the possession of Carthagena and Porto-bello give Right to the interveening Countrey which is above 80 Leagues or 240 English Miles and these particular Forts as well as the whole Spanish Plantations on the South Sea being fixt without consent of the Natives who continue their Possession in the interveening Countrey without any Subjection to or acknowledgment of the Spaniard It lyes upon the Spaniards to condescend by what Rule the Limits of these Possessions can be so far extended As to what is alledged That the Spaniards have other Plantations nearer to the Scots Settlement from which they removed but still retain Possession and Jurisdiction It is Answered Admitting the matter of Fact as alledged it comes to nothing For still it is to be remembred That the Spaniard will not pretend to have planted with the consent of the Natives Nor that the Darien Indians have ever acknowledg'd Subjection but they planted by Force and Violence And therefore whatever Forts they made in the Isthmus of Darien the moment that these Plantations were left the Right and Possession of the Natives did return It is freely acknowledged That Possession lawfully obtain'd by an outward Act of the Body is retain'd by Acts of the Mind if no other possess but when Possession is taken by way of Fact and not actually detained the Right and Possession returns to the lawful Proprietor 2. This alledged Possession of Nombre de Dios and in the River of Darien is only pretended to have been at their first Settlement in America before they possess'd Carthagena and Porto-bello 3. None of these pretended Settlements are within 20 Leagues of the Scots Colony And tho Spain had yet Plantations there the Limits could as little be